Corona measures: what is legally possible and what is not?
Status: 12/22/2021 1:40 p.m.
The Infection Protection Act has been changed several times. As a result, the requirements for corona measures have shifted again and again. An overview.
By Claudia Kornmeier and Frank Bräutigam, ARD legal editors
It is easy to lose track between paragraph 1 nos. 1 to 17, paragraph 7 nos. 1 to 8 and paragraph 8 nos. 1 to 7 including a double negative. And so a lot is getting confused these days when it comes to the question: Which corona measures can the federal states now adopt? What is there a legal basis for? And what not for?
The chairman of the Union parliamentary group in the Bundestag, Ralph Brinkhaus, was missing in the ARD morning magazine a basis for restaurant closings: “It is the case that there is currently no legal basis for closing restaurants across the board, for example.” His party colleague, NRW Prime Minister Hendrik Wüst, expressed a similar opinion on Tuesday at “Bild live” when asked whether there will be closed restaurants again: “This is currently not legally possible. The new majority in the German Bundestag, the traffic light, excluded all of that. “
That is not right. In fact, there is a legal basis for restaurant closings. To be more precise: It is legally possible for the federal states to close the catering trade if they want to do so politically.
Distribution of tasks between the federal government and the states
The Federal Infection Protection Act has not become clearer due to the numerous changes in recent months. It remained – except for the time of the federal emergency brake – but with a general distribution of tasks between the federal government and the federal states: The federal government lays down the legal framework for the corona measures, the federal states decide which measures they specifically implement. The central regulation is Paragraph 28a. The law now distinguishes between three constellations and introduces a transitional regulation.
What the state governments can currently regulate in all federal states, if the infection protection requires it, are distance requirements, contact restrictions, mask requirements, 3G and 2G proof obligations, the obligation to submit hygiene concepts and contact follow-up, upper limits on persons, for example at events, and requirements for the Operation of community facilities, e.g. for schools, daycare centers and universities.
State parliaments can decide on further measures
Indeed, it is not possible to close restaurants on this basis. But there is another way: If there is a “concrete risk of epidemic spread” of Covid-19 in a federal state, the state parliaments can decide, according to the Infection Protection Act, that further measures may be taken – for example, the closure of restaurants, leisure and cultural institutions. On this legal basis, not only restaurants, but also clubs and discos, for example, can be closed. Baden-Württemberg, for example, already provides for the latter.
Almost all federal states are currently making use of this “state opening clause” – including North Rhine-Westphalia. But they do not exhaust all the possibilities that the Infection Protection Act gives them. In such a case, the closing of trade fairs, alcohol bans in public spaces, the ban on major events and entry bans for nursing homes, for example, are also possible.
For a full program: epidemic situation
What the federal states are currently unable to regulate, for example, are exit restrictions, the closure of schools, hotels and retail stores or bans on demonstrations and worship services. To do this, the Bundestag would have to determine an “epidemic situation of national scope” again. After the federal election, the new majority did not make this statement. But it is a prerequisite for the aforementioned particularly tough lockdown measures.
The federal states only have a legal basis for the full program of corona measures again when the members of the Bundestag again discover an epidemic situation. However, this is possible at any time if a majority of the parliamentarians are of the opinion that the conditions for this are met. This option has not been deleted from the law.
The Basic Law demands proportionality
Anyone wondering that in some cities and regions demonstrations with reference to infection protection are currently being banned or exit restrictions are being issued for people who have not yet been vaccinated: This is made possible by a transitional rule that should apply until March 19, 2022.
In addition, the following applies: When specifying the corona measures, the federal states must also adhere to the provisions of the Basic Law. The question of proportionality is particularly relevant. Not all corona measures taken by the federal states have withstood judicial control in the past.